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ASSAULT OJN MR. SUMNER. 

Vx , -t ; - 

:L C i SPEECH 

OF 


HON. ANDREW OLIVER, OF NEW YORK, 

n 


DELIVERED IN THE HOUSE OF REPRESENTATIVES, JULY 12, 1853. 



•Oft the follo\ving resolutions reported by the select crom- 

inittee to investigate the alleged assault upon Senator 

Sumner by Mr. Brooks : 

Rcsoliyed, That Preston S. Brooks be, and lie is fortli- 
with, expelled tVoin tliis House as a Representative from tlie 
State of South Carolina. 

Resolved, Tliat this House hereby declares its disappro¬ 
bation of the said act of Henry A. Kdmundson and Law¬ 
rence M. KEitT, in regard to the said assault; 

iJie pending question being on the amendment of Mr. Cobb, 
of Georgia, to strike out the resolutions, and insert, in lieu 
thereof, the following: 

Resolved, That this House has no jurisdiction over the 
assault alleged to have been committed by the Hon. Pres¬ 
ton S. Brooks, a member of this House from the State of 
South Carolina, upon the Hon. Charles SomneR, a Sen¬ 
ator from the State of iMas.«acliu.sett.s ; and therefore deem 
it improper to express any opinion on the subject— 

Mr. OLIVER said: 

Mr. Speaker: To the reader of constitutional 
history, who has learned how much the liberties 
and greatness of a people are attributable .to the 
privileges of its high legislative assemblies, it will 
not be necessary to enter upon a lengthened argu¬ 
ment to show how deeply important is the ques¬ 
tion which now engage.s the attention of this 
House. All the recollections of the struggles for 
freedom in the land from which we have descended, 
and our own revolutionary struggle, will stimulate 
u.s to earnest watchfulness for the protection of 
the bulwark of freedom from both despotism and 
anarchy. Freedom of speech in the halls of legis- 
iation is necessary to the continuance of free insti¬ 
tutions, and the personal freedom of the member 
is essential to the whole. Acting on well-estab¬ 
lished principles, the Senate has not attempted 
to try the member from South Carolina [Air. 
Brooks] for an offense committed in the Senate 
Chamber', but has sent the case to this tiouse for 
adjudication. Were it otherwise, in troublous 
times—and such may come—the despotism of one 
House might invade the liberties of the other. 

It is, however, with some concern, Mr. Speaker, 
that I have heard gentlemen call in question the 
power of this House to try. If that be true, 


^ -.W-’' ' ■ 

j while we guard against th'O despotism- of the 
other branches of the Government, we fling the 
rein to anarchy, and run riot ourselves. Such a 
(position is inconsistent with the instincts of our 
nature; it is iri'econcilable with the charter of our 
liberties. 

“Each House may determine ihc rules of its proceed- 
ings, punish its members for disorderly behavior, and, 
with the concurrence of two thirds, expe! a member.” 

This provision is clear and explicit. It plainly 
gives each House the power to punish its own 
members for disorderly behavior, with the limit¬ 
ation, that two thirds must concur to expel a 
member. What other construction can be given 
to words so plain? Any other must necessarily 
be, not strict and logical, but illiberal and forced. 
This clause was very maturely considered by the 
framers of the Constitution. It wa.s proposed 
in the Federal Convention to give to a majority 
the power to expel, but Adr. Madison held that 
tlie right of expulsion was too important to be 
exercised by a bare majority of a quorum, and 
in emergencies might be dangerously abused;” 
and he moved the substitution of two thirds for a 
majority. Mr. Randolph, Mr. Mason, and Mr. 
Carroll, approved of the suggestion, but Mr. 
Alorris thought the power might be safely trusted 
to a majority. “To require more,” he said, “ may 
produce abuse on the side of the minority. A 
few men, from factious motives, may keep in a 
member who ought to be expelled.” Mr. Mad¬ 
ison’s amendment was adopted with singular 
unanimity, ten States voting on the affirmative 
and oiiQ being divided. Thus it will be seen that 
the Constitution expressly confers upon both 
Houses the entire jurisdiction over its own mem¬ 
bers. There is no limit to this power. It is 
entirely discretionary with the two Houses, and it 
must necessarily be so, to accomplish the objects 
sought in the establishment of this body. The 
two Houses of Congress and the Executive con- 
! stitute the three great legislative departments of 
i the Government. It was the design of the framers 
j of our Constitution to make them as independent 
• of each other as possible, and yet to make them 


/; 





















work together. This was a leading and favorite 
idea with the framers of all our State constitu¬ 
tions, as well as of our Federal Constitution. 

It is objected that this House ought not to 
possess this power of expulsion, as its exercise 
cannot be reviewed, even in case of abuse. The 
same objection would deprive us of our highest 
appellate courts. An ulliinatum of power, to a 
certain extent, must exist in all bodies, and in 
every Government. There must be some body 
having this xiltlmahim of power. The powers in 
our Government are divided by the Constitution, 
and defined explicitly. Neither branch can 
exercise powers not expressly given; but each, 
within its constitutional limits, possesses this 
ultimatum of power. 1 might show, by the de¬ 
cisions of the highest courts of law, both in Eng¬ 
land and in this country, as well as by the most 
learned and eminent jurists of both countries, 
that this privilege, or power, of the House over 
its own members, is clear and certain, and well- 
defined, and not uncertain, doubtful, and unde¬ 
fined; and that the power to punish is not only 
not uncertain, but as well established, and as well 
known, to every legislative body, as any portion 
of the constitution under which that body is 
organized. » 

I do not claim this power from the lex parlia- 
mentaria, but from the Constitution itself. Nor do 
I claim that the lex parliamentaria of the British 
Constitution is a part of the lex terre of this coun¬ 
try as it is in England, I entirely concur in the 
opinion expressed by the honorable gentleman 
from South Carolina, [Mr. Boyce,] that the lex 
parliamentaria has no force in this body unless 
made so by our rules. This House—the two 
Houses act, and act only by authority of the 
Constitution, with limited and specific powers. 
When it goes beyond this written charter it acts 
without authority, and itsacts are therefore void. 
I go with that gentleman and all others wlio 
maintain that that instrument ought to be strictly 
and not liberally construed. But, sir, this House 
—both Houses, the executive, the judiciary, and 
many minor departments of the Government, have 
in certain cases discretionary power, and in those 
cases they possess the ultimatum of povv'cr, and 
must from necessity possess it. 

I have not gone into the question of the power 
of this, or of the other House, to punish for con¬ 
tempts committed by others than its own mem¬ 
bers, in or out of its immediate presence. Nor 
do I intend to do so, further than to direct atten¬ 
tion to an observation made by Mr. IMadison in 
the Federal Convention when this subject was 
under consideration in that body. Mr. Pinck¬ 
ney submitted this, amongst other propositions, 
for the consideration of the convention: 

“ Each House sliatl bethe judge of its own privileges, and 
shall have authority to punisli by iniprisoniucnt every per¬ 
son violating the same, or who, in the place where tlic l.e- 
gislatnre may be sitting, and during the time of its session, 
shall threaten any of its members for anything said or done 
in the House; or who shall assault any of tliem tlierefor; or 
who shall assault or arrest any witness, or otlier person, or¬ 
dered to attend either of the Houses, in his way going or 
returning; or who shall rescue any person arrested by their 
order:” 

But when this subject came up for considera¬ 


tion, Mr. Madison objected, distinguishing‘^be¬ 
tween the power of judging of privileges previ¬ 
ously and duly established, and the elFect of the 
motion which would give to each House a dis¬ 
cretion as to the extent of its own privileges. He 
suggested that it would be better to make provis¬ 
ion for ascertaining by law the privileges of each 
House, than to allow each House to decide for 
itself.” Now, Mr. Madison draws a broad dis¬ 
tinction between the privileges of Senators and 
Representatives defined in the Constitution, and 
those privileges which Mr. Pinckney proposed 
to confer upon each House. Mark Mr. Madi¬ 
son ’s language: “ previously and duly established, 
and the effect of the motion.” Why, sir, the 
privilege claimed here—the power of the House 
over its own members—is as clearly and distinctly 
defined, as human language can define it. The 
power to punish its ow'n members, in its discre¬ 
tion, is as clearly and positively given, as any 
power in the Constitution. If Congress should 
enact a law in such case, it could do no more than 
to enact this provision of the Constitution. 

Mr. Madison evidently intended that there should 
be a provision in the Constitution, giving Congress 
the power to pass laws providing for the punish¬ 
ment of contempts. There is no provision in the 
Constitution giving Congress pow'er to pass such 
a law. Why, sir, it is held by gentlemen all round 
me, that Congress can only punish for contempts 
committed in the presence of the House, while 
the House is in session. Where do gentlemen 
get this power ? It certainly is not in the Con¬ 
stitution. Do they get it from the great princi¬ 
ple of self-preservation, the great law of nature? 
If so, where is its limit? It is certainly in tho 
discretion of .the blouse alone. 

Sir, this principle has been decided, if prece¬ 
dents are worth anything, over and over again, 
by our highest judicial tribunals, and by this 
body itself, in numerous instances. 1 will not 
trouble the House by referring to them all—they 
have been cited and repeatedly commented on 
during this discussion. I will, however, refer to 
one decision of the Sujiremo Court. It is the case 
of Anderson against Dunn, in 6 Wheaton. Jus¬ 
tice Johnson in that case says: 

“ It is certainly true that tliere is no power given by the 
Constitution to eitlier House to piiriish for contempts, ex • 
cept when committed by their own members. Nor doe-s 
the judicial or criminal power -given to the ITiiited States, 
in anyone part, expressly extend to the inflictioii ofpiiiusli- 
ment for contempt of either House, or any one courditiate 
branch of the Government. .Shall we, therefore, deeidw 
that no such power exists?-’ 

Again, in speaking of the implied power, h« 
says: 

“ Nor is it immaterial to notice what difficulties the ne¬ 
gation of this right in the House of Representatives draws 
after it, when it ls considered that the concession of powe^, if' 
exercised within their walls, relinquishes the great grounds 
of the argument, to wit: the want of an express grant, and 
the unre.stricted and undefined nature of the power here 
set up. For why should the House be at liberty to exercise 
an ungranted, an unlimited, and undefined power within 
their walls, any more than without them ?” . 

But I regard the doctrine of contempts as having 
no application to the question now before the 
House, except by way of illustration or analogy. 













3 


But, sir, it is said that the House cannot pun¬ 
ish a breach of the privileges of the Senate. Tliis 
is undoubtedly true as to a stranger,but not as to 
one of its own members. This House alone has 
plenary power to arrest and punish one of its 
members. The Senate have no power to cause 
the arrest of a member of this House. This is 
as well settled as any rule of parliamentary law 
can be. Whether the House should punish one 
of its own members for a breach of the privileges 
of Senators is the question I shall now pass on 
to consider. 

I was much pleased in listening to the remarks 
of the honorable gentleman from Pennsylvania, 
[Mr. Cadwalader,] upon the question of the 
powers of this House over its members; but 
when he declared, that when a member in debate 
transcends the legitimate bounds of parliamentary 
decorum in debate he lost the protection of his 
privilege, I was surprised. 

The speech of the honorable gentleman from 
Tennessee [Mr. Savage] certainly showed the 
necessity of such a privilege. But I admit, so far 
as this House is concerned, the member has no 
privilege. Plere he may be questioned, but in no 
other place. A member cannot lose his privilege. 
He is privileged to deliver his speech—he delivers 
if), and that is the end of it. He can never be ques¬ 
tioned in any other place. If he can lose the pro¬ 
tection of his privilege when he transcends the 
propriety of parliamentary debate, the guarantee 
of the Constitution is of no avail; for 1 submit 
with confidence, that the very object of the provi¬ 
sion was to allow the greatest possible latitude in 
debate or in speech—free speech as it is called. 
Besides, who is to judge when a speech is calum¬ 
nious, and when it transcends strict parliamentary 
decorum in debate.’ This House? I grant you. 
The courts ? Outsiders?—are they to sit in judg¬ 
ment upon a speech delivered within this House 
and give a sentence upon its character, when this 
House refuses to do so itself? No, sir, this ques¬ 
tion rests upon other and far higher grounds than 
any which concern the rights and interests of 
private individuals, or of this House, or of both 
Houses, important as they are. Yes, sir, this 
question concerns the whole body of the people. 
It is not a question involving merely the order 
and dignity of this House, or of the other House; 
it involves the very existence of both Houses of 
Congi'ess as free deliberative assemblies. Con¬ 
gress is the great political assembly of the nation, 
his the duty of this and the other House to inquire 
and examine into all the corruptions of the Gov¬ 
ernment—into all cases of fraud and of peculation 
in the officers and employes of the Government. 
Here are discussed the laws of Congress enacted 
underiheConstitution, whether in respect to rev¬ 
enue, to cotnmerce, the public lands, the rights of 
persons and of States, the Army and Navy, peace 
and war, foreignand domesticpolicy. This House 
has the power of moving ail impeachments, as the 
other has of trying them. In Congress all those 
reat public questions in relation to foreign and 
omestic affiairs are brought up and discussed. 
Here all the passions of the nation may be said 
to be concentrated. These Houses are the great 
focus of popular inquiry and information; because 


here, in free discussion, arc brought out the great 
facts and information which are so important to 
the people in the proper exercise of their high con¬ 
stitutional rights, not only in regard to principles, 
but also in regard,to the j^olicy of those in power, 
in the administration of the Government. Here 
are discussed the rights of the people, the real and 
true character of public measures and men, and 
the great principles and constitutional questions 
of the Government. This body may make and 
unmake the President; and, in a time of high 
party excitement, the time may come when all the 
power now claimed for itby its mostardentfriends 
may be needed to protect it from the violence of 
the mob on the one hand, and the tyrtinny of the 
Executive on the other. 

The great idea of our ancestors in framing this 
Constitution was to make the legislative depart¬ 
ment of the Government free in all its delibera¬ 
tions. A free deliberative legislative assembly, like 
our own, beyond^the control of the judicial or ex¬ 
ecutive power, is something hardly known in the 
hislo'Ty of the world. The English struggled for 
it for centuries, and cannot be said to have attained 
it until the Revolution of 1G68. Before that time, 
in the struggle between prerogative and privilege, 
sometimes the power of the Crown overwhelmed 
the Parliament, and sometimes the power of lh6 
Parliament overwhelmed the Crown. Whichever 
trium[)hcd alike subverted the liberties of the peo¬ 
ple. In the other States of Christendom such a 
body is unknown. The republics of antiquity had 
nothing like it. Free discussion in the delibera¬ 
tive assemblies of Athens was for some years sus¬ 
tained, and while preserved, Greece was free; but 
when suppressed, liberty perished with it. PcOme 
for awhile had something like free deliberations 
in her Senate; but with Cicero her liberty and 
the freedom of the Senate perished together. 

This peculiarity, if I may so speak, in our 
system of Governmentis peculiarly Anglo-Saxon. 
The great idea was starte^d in the old Saxon time, 
but it was left to a later day to develop and perfect 
it in the English and American constitutions. 
The free, absolute, unrestricted right in the legis¬ 
lative department of the Government to deliberate 
and to act upon, to discuss and to inquire into, 
any and every subject of national affairs, or matter 
of public concern, without any responsibility 
whatever to any other tribunal, is the great prin¬ 
ciple which underlies our whole system of con¬ 
stitutional freedom. This great principle the 
founders of our Constitution secured to this and 
the other House by putting into the Constitution 
two principles which the English people have ever 
held to and maintained with true Saxon tenacity, 
from the earliest times,and never abandoned, even 
in the darkest hour of their struggle for constitu¬ 
tional freedom. The one is the personal freedom 
of each member of the two Houses from arrest, 
except for crime, during his attendance upon the 
sessions of his own House, and in going to, and 
returning from it; and the other is, that of free¬ 
dom of speech or debate in his own House, with¬ 
out question in any other place. 

Now, sir, it seems to me clear—and I shall en¬ 
deavor to show it both from history and the 
highest constitutional and judicial authorities, as 













4 


well as the most reliable deductions of common 
sense — that without these two jirivileges there 
can be no permanent security for freedom in 
this, or any other legislative assembly consti- 
^ tuted like it. These two principles—but more 
especially that of the freedom of speech, is most 
essential and necessary to every deliberative body. 
It is inherent and inseparable from its existence, 
and is its very life; so congenial to it, as an old 
writer has well remarked, that without it it could 
not preserve its independent and deliberative 
character for a single day. Freedom of speech 
and freedom of deliberation are essentially one 
and the same thing: both must live or both must 
die together. 

Let me now, sir, call your attention to a few 
points in the constitutional history of England, 
which will at the same time serve to illustrate the 
object and the meaning of these provisions of 
our Constitution, as well as show the high value 
placed upon them by the English people as a 
security to their constitutional freedom. In such 
value have these principles been held, that in 
every great crisis in their history which has 
arisen, they have fallen back upon them, again 
and again affirming them, not as new privileges 
just discovered, or new principles nr rights just 
found, butasalways existing and always belong¬ 
ing to them from the most remote period. 

Go back, sir, to the early Saxon time, and you 
will there find laws providing security for the per¬ 
sons of the members of their great Legislative 
Assembly—the Wittenagemote—both in going to 
and in returning from it, except they were notori¬ 
ous thieves and robbers. As early as the fourth 
of Henry VIII., these very provisions of our own 
Constitution were substantially incorporated into 
an act of Parliament. The great Lord Hale— 
one of the best as well as one of the most re¬ 
nowned jurists of his time, or indeed of any time— 
in commenting upon this very statute, says; 
“ This act of the fourth of Henry VIII. is decla¬ 
ratory of the law and ancient custom of Parlia¬ 
ment.” You will find, sir, that the old writers 
on parliamentary law declare thatThomas Moyle, 
in this same Henry’sreign, was the first Speaker 
of the House of Commons who ever petitioned 
the King for freedom of speech; and one old 
writer, in commenting upon this fact, observes 
that he was the first Speaker who had the mcanne^^s 
to do it, for it was craving the very existence of 
the House. Libera tnens et libera lingua, was ever 
the maxim. This craving the liberty of speech 
was done to please that tyrant; and it may be, 
though I have forgotten, that this Speaker Moyle 
was the same whom this bloody and sometmies 
facetious King called before him, and while kneel¬ 
ing at the foot of the throne, Henry, putting his 
hand upon his head, said, speaking of the supply 
bill: “Mr. Speaker, pass that bill before to-mor¬ 
row morn, or you will not find this head where 
it is now. ” 

We learn, from an incident in the history of 
James II., in the nineteenth year of his reign, 
that the Commons placed a noble protestation or 
declaration for freedom of speech and free delib¬ 
eration upon their Journals, there to remain of 
record, and that that arbitrary monarch had the 


audacity to tear it from the record with his own 
hand; but notwithstanding that petty act, that 
noble monument of the manhood and courage of 
the members of that Parliament has come down 
to us, and should ever be remembered to illustrate 
and give meaning to a like provision in our own 
I Constitution. Here is the jirotestation itself: 

“ Tlie Commons, now assembled in Parliament, being 
justly occasioned tliereuirtoconcerning liberties, franchises, 
privileges, and jurisdiction of Parliament, amongst others 
! not herein mentioned, do inakethis protestation following; 

I That the liberties, franchises, privileges, and jurisdiction of 
j Parliament are the ancient and undoubted birthright and 
I inheritance of the subjects of England ; and that the ardu- 
j ous and urgent affairs concerning the being, state, and the 
defense of the realm, and of the Church of England, and 
the making and the maintenance of the laws, and redress 
[ of mischiefs and grievances, which daily happen within 
this realm, are proper subjects and matter of counsel and 
debate in Parliament; and that in the handling and pro¬ 
ceedings of those businesses every member of the House 
hath, and of right ought to have, freedom of speech to pro¬ 
pound, treat, reason, and bring to conclusion the same; 
that the Commons in Parliament have like liberty and 
freedom to triuit of those matters in such order as in their 
judgment shall seem fittest; and that every such member 
of ilie said House hath like freedom from ail impeach¬ 
ments, iiii()risonment, and molestation (other than by tho 
censure of the House itself) for or conceniing any bill, 
speaking, rea,soiling, or declarin': of any matter or matters 
touching the Parliament or Parliament business ; and that 
if any of tlie said members be complained of and questioned 
for anything said or done hi Parliament, the same is to bo 
shown to the King, by the advice and assent of all the 
Commons assembled in Parliament, before the King give 
credence to any private information.” " 

Hatsell well remarks, that this “ will forever 
remain a memorial of the true spirit of the great 
leaders of that House of Commons, firm in oppo¬ 
sition to the attempts of an arbitrary monarch 
wishing to trample upon the rights and liberties 
of the ])eople.” 

Another instance, still more worthy of note 
and full of instruction, occurred at the time of the 
great Revolution of 1688, and just before. Charles 
II., after the dissolution of the Oxford Parlia¬ 
ment, determined to rule his kingdom without 
any Parliament. To accomplish this the more 
readily, he took every means in his power to 
lower the credit and authority of Parliament with 
the people. As one of the means resorted to by 
him, he caused his attorney general, in 1683, to 
bring an information against Sir William Wil¬ 
liams, late Speaker of tlie House of Commons. 
This gentleman, when Speaker of the Flouse of 
Commons, had, by its order, published a paper, 
called “ An inforniation against Thomas Danger- 
field.” Parts of this paper reflected on the Duke 
of York. Actions w'cre commenced by Jay and 
others, who had been committed by the House, 
against Topham, the sergeant, for false imprison¬ 
ment. The defendant pleaded the jurisdiction of 
the court; that what had been done had been 
done by the command of the House, and was not 
cognizable elsewhere. The plea was overruled. 
In the second of James II., judgment passed 
against Sir William Williams. In July, imme¬ 
diately after the Revolution, the House took up 
those cases, and summoned before them the sur¬ 
viving judges—Pemberton and Jones —who had 
given judgment, overruling Topham’s plea. In 
giving judgment, they saj^ “that they did not 
doubt the authority of the House to commit, and 










5 


that they sliould have held Topham’s plea per- | 
fectly good, if pleaded as a justification; but that | 
they thought it bad as a plea to jurisdiction, be- j 
cause, if it had been allowed, there would have , 
been no })lace where it could have been inquired j 
whether the sergeant had exceeded his author- | 
ity.” This was so unsatisfactory to the House, 
that it resolved “ that the order and proceedings 
of this House being pleaded to the jurisdiction 
of the court of King’s Bench, ought not to be 
overruled.” The House committed the judges 
into custody, where they remained till the end of 
the session—about three months. 

The Convention Parliament deemed this act of 
such high moment, and so great an infringement 
upon the privileges of Parliament, that it made it 
one of the articles of accusation against James 
II., in the declaratory part of the bill of rights. 
The eighth article is in these words: 

“ By causins: information to be brought and presented in 
the court of King’s Bench, for matters and causes cogni¬ 
zable only in Parliament, and by divers other arbitrary and 
illegal acts.” 

The Lords, at first, refused to agree to this, 
because, they say, “ they do not fully apprehend 
what is meant by it, nor what instances there 
have been of it; which therefore they desire may 
be explained, if the House shall think fit to insist 
further on it.” The House insisted, but say, in 
answer to the Lords, in respect to the liberty of 
explaining that matter: 

‘^Resolved, That the words shall stand in this manner: 
‘by prosecutions in the court of King’s Bench, fur matters 
and causes cognizable only in Parliament, and by divers 
other arbitrary and illegal courses.’ ” 

By this amendment the object was made more 
clear. That this declaration applies to Sir Wil¬ 
liam Williams’s case is clear, when we reflect that 
the prosecution was commenced in Charles ll.’s 
reign, and judgment rendered in James II.’s. No 
other cases had occurred during this peribd when 
it had been attempted to question, in the courts, 
these privileges of Parliament. 

But to make this object still more clear to the 
Lords, the House ordered “ that Sir William 
Williams be added to the managers of the con¬ 
ference;” and on that same day Sir William 
Williams reports the conference “ that their 
lordships had adopted the article in the words as 
amended by the Commons.” And in the ninth 
article of the declaratory part of the bill of rights, 
and in answer to their article of grievance, is the 
right or the privilege of the subject declared: 

“ That tho privilege of speech and debate, or proceedings 
in Parliament, ought not to be impeached or questioned in 
any court or place out of Parliament.” • 

Now, sir, there are two things worthy of 
notice, which I will merely mention. One of 
them is the language of the last clause—“ in any 
court or place.” The language of our Constitu¬ 
tion is, “ any place”—evidently intending by the 
words “any place,” every place, whether in court | 
or out of it. 

Sir, the position taken by gentlemen, that their 
privileges can only be taken advantage of by plea 
in court, is an entire fallacy. The privilege is as 
broad as our language can make it, and shields 
the member in every place. The other point to 
which I have referred, is the occasion upon which 


this declaration was made. It was made by the 
great Convention Parliament, at the time of the 
constitutional settlement at the Revolution which 
placed William and Mary on the\throne, and 
which declared the bill of rights. Thus termin¬ 
ated the great struggle for freedom of speech, 
and of debate and proceedings in English parlia¬ 
mentary history, and secured the Parliament of 
Great Britain that freedom in its deliberations 
which it now enjoys. This great privilege, or 
principle, rests securely as the keystone in the 
arch of English constitutional freedom; and should 
it ever be destroyed or^displaced, the whole fabric 
must fall together. 

I have referred to these incidents more by way 
of illustration, Mr. Speaker, than authority— 
more to get at the clear meaning and object of this 
clause in our own Constitution, and to show tlie 
great estimation in which it has always been held, 
than to claim that the question was settled by pre¬ 
cedent or usage. 1 know too well that, in a great 
question like this, involving the natural and con¬ 
stitutional rights of the whole people, usage and 
precedent cannot, and ought not, to conclude. 
j^ulliim tempus occurrit populo. 

But, sir, to go back again to our own Consti¬ 
tution. That defines this clause clearly and ex¬ 
plicitly, and lays down the limits of these per¬ 
sonal privileges with mostsedulous care. Besides, 
they were adopted with entire unanimity by the 
convention which framed the Federal Constitu¬ 
tion. I can hardly conceive that tiiey can be 
otherwise understood by any one who has studied 
their history, and their necessity to a free delib¬ 
erative body. 

The honorable gentleman from Georgia [Mr. 
Cobb] the other day asked, where do you obtain 
your privilege } Here it is, in the Constitution 
itself: “ And for any speech or debate, in either 
House, they shall not be questioned in any other 
place.” But the honorable gentleman says this 
only gives protection against prosecutions in the 
courts, and not from illegal seizures or detentions 
elsewhere. Why, sir, suppose a member kidnaps 
his fellow-member for having spoken in opposi¬ 
tion to a measure before the House, against his 
wishes or interests: would that not be such an 
infringement of this constitutional privilege as 
would justify the House in using its whole power 
to punish this outrage of one member upon the 
constitutional rights and privileges of another 
member, by expulsion ? I am free to say, sir, that 
any House which would not vindicate itself and 
the privileges of its members from such outrage.s, 
would justly merit, and get, 1 believe, the con¬ 
tempt of the people. 

But it is asked, with triumph, why should a 
member of Co)igress be privileged to speak and 
! slander within this body, without the fear of pun¬ 
ishment elsewhere } I answer as triumphantly— 
and it is a full and perfect answer, too—because 
i that is necessary to free deliberation; for there 
can be no free deliberation without freedom of 
speech. It is for this body, and for the other 
House, to judge what is slanderous and what is 
not. If the speech of the Senator [Mr. Sumner] 
was a libel, it is for the Senate to punish the 
libeler by expulsion or otherwise, under theCou- 


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6 


stitiUion, and I doubt not they would have done { 
so, had they deemed it libelous. It is not a case 
for the couiHs or for the club; il is for the consid¬ 
eration of one or the other branch of Con<,n-ess. 

I do not contend that this exemption extends to 
publication. It only extends to the protection 
of freedom of speech in the bod)'' itself. That 
is to influence the body, not the country. The 
oflicers of the House, perhaps, under another 
])rovision of the Constitution, may be privileged 
for publishing speeches, under an order of the 
House, as a part of its proceedings; but certainly 
a member can have no more right to publish 
with impunity a slander, because it has been 
delivered here, than if delivered in any other 
place. It may fairly be held, I think, that the 
debates are a part of the jiroceedings of the 
House, as much so as any other of its doings; 
but the member has the right to refuse to have 
his speech published, and to conceal what he said 
in dehate. In England, it is a contempt of the 
House for a member to publish his speech with¬ 
out the authority of the House. Lord Ellenbo- 
rough once said: “ It is a degradation in any man 
to publish a speech delivered by him in Parlia¬ 
ment.” Lord Elienborough was evidently an “ old 
fogy,” I submit to rny learned friend, the distin¬ 
guished chairman of the Judiciary Committee, 

\ Mr. Simmon'S.] 

A distinction has been drawn by some gentle¬ 
men, who seek to excul})ate the member from 
South Carolina, [Mr, Brooks,] between the de¬ 
livery and the publication of the Senator’s [Mr. 
Sumner’s] speech; and thus they seek to excul- 
jiate him from the charge of an aggression on free¬ 
dom of debate. They allege that the assault was 
made for the publication, and not for the delivery 
of the speech. To my mind the facts are directly 
the contrary. The member’s [Mr. Brooks] own 
declarations were directly the contrary, as I under¬ 
stand them. It was for the speech delivered, and 
not for its publication, that the battery was com¬ 
mitted. I will give the declarations of the gentle¬ 
man from South Carolina, [Mr. Brooks,] made 
at the time, which must settle the question. It is 
part of the res gestcc of that transaction. This he 
gives as his reason for committing the battery, 
liiat his conduct might be precisely understood: 

“ I have,” he said to the. Senator just before he 
struck him, “ I have read your speech carefully, 
and with as much calmness as I could be expected 
to read such a sjieech. You have libeled my State, 
and slandered my relative, who is aged and absent; 
and I feel it to be my duty to punish you for it.” 
For what.^ Why, certainly, for the speech, not 
for printing and circulating it. But, sir, what¬ 
ever distinction there may be between the utter¬ 
ance and the publication of the speech of the Sen¬ 
ator, [Mr. Sumner,] can make no diflerence in 
the guilt of the gentleman from South Carolina, 
[Mr. Brooks.] 

Before I leave this subject I will add one word 
in this connection, in relation to the charge, that 
this speech of the Senator [Mr. Sumner] is libel¬ 
ous. It may be so in the eye of the common-law 
lawyer, for the maxim of the old writers on libel, 

“ the greater the truth the greater the libel,” 
is yet a favorite with them; but to the student 


of history, to the classical scholar, and to the 
orator, it will always be read with mingled emo¬ 
tions of pleasure' and surprise, and, perhaps, 
by some with regret. It is a speech of unpar¬ 
alleled severity, and yet parliamentary. In my 
Judgment it is not as severe — libelous, if you 
please — as some of the letters of the vindictive 
Junius, or some of the splendid denunciatory 
passages of Edmund Burke, nor yet of some por¬ 
tions of the renowned philippics of the celebrated 
orators of antiquity; and it will compare favora¬ 
bly with any of them. But understand me—I do 
not approve of the temper and tone, nor of some 
of the positions and conclusions of that speech. 
1 think it would have been better for his fame 
and for his country, if some portions of the hard 
things there said had been omitted. But he had 
the undoubted riglit to pronounce that speech; 
and as every Senator there present sat in his place 
and heard it without one word of objection, and 
without one intimation that it was disorderly or 
libelous, or even a breach of the decorum of the 
Senate, it little becomes, I confidently submit, any 
member of this House to assume the responsibility 
of answering it as the member from South Caro¬ 
lina [Mr. Brooks] has done. 

But it is asked, if this license is to bo given 
to debate, what redress has the citizen against 
calumny uttered on this floor.^ Sir, in how many 
instances is a private citizen compelled to make 
sacrifices for the common good, looking to the 
commonwealth for satisfaction A citizen injured 
under such circumstances, would have a claim 
against his countr)', which this and the other 
House would respond to, and hasten to do ample 
justice. The Constitution has provided an ample 
remedy in the petition for a redress of griev¬ 
ances. The gentleman from South Carolina [Mr. 
Brooks] can sustain himself by no such reason. 

But, before I leave this subject, 1 desire, in 
answer to the remark of the gentleman from 
North Carolina, [Mr. Winslow,] as to what rule 
of the House has been violated, to say that it is 
the Constitution of which all arc bound to take 
notice and obey. The Constitution is a rule of 
the House of the highest character, and one that 
the House cannot suspend or avoid. Sir, the 
Constitution is the highest political law of the 
land, as the people are the highest political power 
of the land. The idea upon which the British 
constitution rests is, that all power flows from 
the Crown; in our own, that it flows from the 
people. It is the Constitution which makes a 
nation, and unites, in the persons of their repre¬ 
sentatives’sovereignty. The theory of our Gov¬ 
ernment I have already sufliciently for my pur¬ 
pose alluded to. To avoid the danger of putting 
the whole power of the State in one body, the 
founders of our system divided it between the 
law-making, the law-judging, and the law-exe¬ 
cuting powers, with such checks and guards and 
balances as to make them, as far as possible with 
safety to the whole, independent of each other. 
The wrong in this case was against one portion 
of this sovereignty, and hence against the whole 
people. This wrong has a threefold diameter. 
U is, first, a violation of the rights of the citizen; 
it is, second, a violation of the public peace; and 

















third, it is a violation of the privileges of the 
Senator [Mr. Sumner] and of the Senate, and 
hence of the whole people. For the redress of 
the first a civil suit may be' brought; for the 
redress of the second an indictment may be found; 
and for the redress of the third the power of this 
House alone may be invoked. And this is the 
only tribunal which can consider that wrong. The 
Senate cannot do it, for the Constitution exempts 
the member [Mr. Brooks] from arrest. Like 
that gravest offense against the life of the State, 
so this is one against the life of free deliberation, 
which is the life-blood of liberty. 'It is the attack 
of the trustee upon the life of his beneficiary—of 
the servant upon that of the master; and, like 
those great offenses, this should be punished 
capitally by expulsion from this body. 

Why, sir, can we fail to reflect that, when a 
member of either House may be stricken down 
for words spoken in debate with impunity by his 
fellow-member, without punishment, freedom of 
discussion is at an end? Neither House is longer 
a deliberative body. No stronger case can ever 
occur which infringes upon the freedom of debate 
or speech, than this which we are now called 
upon to decide. If the right to punish exists not 
in this case, it can never exist at all. The Con¬ 
stitution was framed for the people. This is an 
asSembl)'- of the representatives of the people, 
and its rights and privileges are the rights and 
privileges of the people. Suppose the represent¬ 
atives of the people should meet in convention to 
frame or amend a State constitution: could they 
not punish an outrage of this sort by expulsion ? 
If not, no constitution could ever be formed 
against the determined opposition of an insig¬ 
nificant portion of bad members of the body com¬ 
bined to prevent it. What has been the experi¬ 
ence of France? Her national assemblies, her 
constitutional assemblies, and her national conven¬ 
tions, have each in turn been the creature of the 
junto, the lobby, and the gallery. Who can say 
that such consequences may not occur in this 
country, when freedo)n of speech or debate shall 
be suffered to be stricken down, without the inflic¬ 
tion ofsiimmary punishment upon him who strikes 
the first blow againsiit? Why, sir, should a mem¬ 
ber so far forget his high responsibilities to the 
country and to this body, as to commit a high 
crime and misdemeanor, or a felony, or any high 
offense against the criminal law of the country, I 
tliink he should be expelled from it. I should 
not hesitate to record my vote against him. Sonie- 
thing, I think, is due to the purity of this high 
body. But 1 think I have pursued the topic far 


enough to bring the mind to reflect upon the 
great question here involved—that the great right 
of freedom of speech, or debate, is necessary to . 
freedom of deliberation in legislation; and that the 
power to punish for its violation is absolutely 
neccssr.ry to secure that great end, and that in 
his case that power ought to be most severely 
exercised. Sir, our institutions were hot intended 
by their founders to perish in a day, nor (fVen in 
•centuries; but unless this lawless spirit of aggres¬ 
sion upon private rights, and the constitutional 
privileges of the citizen, is cruslied and put dov.'n, 
it must finally sap and undermine all that is 
valuable in our institutions, the inevitable con¬ 
sequence of which must be that they will fall and 
crush the people in one common ruin. « 

I had intended, sir, to make some comments 
upon the character of this offense, as an assault 
and battery merely; but I will not burden your 
attention further. Others have done that fully, 
and, indeed, the public mind is fully possessed 
with all the facts and circumstances of this most 
painful and disgraceful transgression. In regard 
to the second resolution of the majority of the 
committee, I will simply observe that I am sat- * 
i.sfied, both from the testimony in the case, and 
the repeated declarations of the gentleman from 
South Carolina, [Mr. Brooks,] and certain facta 
not yet disclosed, but of the truth of which I am 
wholly confident, that the gentleman first named 
in it, the gentleman from Virginia, [Mr. Edmunu- 
soN,] is entirely innocent of any offense whatever, 
and that his name ought not to be included in the 
I resolution. As to the other gentleman named, the 
gentleman from South Carolina, [Mr. Keitt,] 
the resolution, as it stands, expresses disappro¬ 
bation of the conduct of that gentleman in attend- 
I ing, on tjiat occasion, as a witness in behalf of 
his colleague and friend. In this I .see nothing 
to condemn; but in his interference to prevent an 
officer of the Senate and others from restraining 
the assailant from further acts of violence, I see- 
much to disapprove. 

I have entered into this subject far more at 
length than I intended when I began; but one 
topic after another arose, so rapidly in my mind, 
that I have found difficulty in excluding, rather 
than in finding reasons to sustain, the conclusions 
to which I have arrived. And now, sir, in con¬ 
clusion, I claim for this House, first, the plenary 
power to punish its own members in all cases of 
this sort; and, second, that this is a case which 
demands the exercise of that power in all its 
severity. 


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